baby Peter and the libel action
What should a local authority disclose?
11 March 2011
This year will see the fourth anniversary of the death of Baby
Peter. But the legal proceedings and consequent social work
implications arising from his death show no sign of abating.
The court visited these issues most recently when considering
the libel action brought by one of the social workers, Sylvia
Henry, against the publishers of the The Sun and the News of the
World, News Group Newspapers Ltd (NGN).
Facts
Sylvia Henry alleges that NGN’s coverage placed the blame for
the killing of Peter on her gross and disgraceful incompetence in
returning Peter to his mother; whereas in fact it was her judgment
that the local authority should apply for an Emergency Protection
Order (EPO). She argues that an EPO was not obtained because it was
not supported by her more senior colleagues.
NGN was seeking documents from the local authority, arising out
of the Individual Management Review (IMR) following Peter’s death,
that they considered would shed light on the role of Sylvia Henry
and her colleagues in the decisions about Peter in the relevant
period.
Background
A Local Safeguarding Children Board (LSCB) is a multi agency
body that is tasked with conducting a Serious Case Review (SCR)
when a child dies and abuse or neglect is known or suspected to be
a factor in the death. The SCR looks at the involvement of
organisations and professionals with the child and the family. As
part of the process organisations that were involved with the child
or the family complete an IMR. The aim of IMRs is to look openly
and critically at individual and organisational practice and at the
context within which people were working to see whether the case
indicates that improvements could and should be made and, if so, to
identify how those changes can be brought about.
NGN were seeking the records of interviews of Sylvia Henry and
other staff of the local authority that were carried out as part of
the IMR process. The local authority accepted that the records
would either support or adversely affect the case of Sylvia Henry
or NGN. The principal argument centred on whether the disclosure of
the records should be withheld because disclosure would damage the
public interest.
Whilst the confidentiality of the child and family can generally
be safeguarded by appropriate redaction of confidential
information; the local authority argued that the efficacy of the
IMR process would be threatened if full and open participation of
interviewees was inhibited by concern about possible future
disclosure.
The Judge considered that he had to weigh the different
interests in the balance and form a judgment that was specific to
the case before him.
The Judge decided that the human rights of Sylvia Henry and her
senior colleagues were engaged because if disclosure was not given
the libel claim might be decided on a false basis with very serious
consequences for the local authority staff involved.
Whilst the death of children at the hands of their carers is not
an exceptional occurrence, few such cases give rise to libel
proceedings. The Judge considered that an order for disclosure in
this case would therefore have a limited impact on interviewees in
future IMR interviews.
What was sought was not the whole of the IMR and interviews but
only relevant parts. The parties could apply to the court to limit
the extent to which the documents would be available to the public
and the court would be under a duty to keep this under review
pursuant to the Human Rights of those involved.
The Judge, therefore, ordered the disclosure of the record of
interviews that formed part of the IMR.
SCRs are not inquiries into how a child died or was seriously
harmed, or into who was culpable. These are matters for coroners
and criminal courts, respectively, to determine as appropriate. But
disclosure of SCR and IMR documents is often sought following the
conviction of the person primarily responsible for the death when
there are allegations of negligence on the part of individuals, at
one of the agencies involved with the child or the family, whose
conduct is said to have failed to safeguard the child.
Whilst libel actions arising from the death of a child where
abuse or neglect is a factor are rare, negligence claims are
becoming increasingly common. The government has introduced the
publication of full, rather than just summary, SCR reports. The
court in this case has permitted disclosure of some of the
documents arising out of the IMR.
Implications
If you get a request for disclosure of IMR material, perhaps in
respect of a libel claim but more probably as a prelude to or in
the course of a negligence claim, you should consider:
- Which members of staff (or former members of staff) have an
interest in whether the material is disclosed
- Were any assurances given to interviewees in respect of future
disclosure
- Is the material really going to support or adversely affect the
case of one of the parties or is it no more than a judgment on
practice made from the perspective of a counsel of perfection
- Have you disclosed the material sought in any other proceedings
or context
- What is the minimum that can be disclosed
Whether the material should be disclosed will depend on a
balancing exercise between the various interests. The local
authority may, in order to preserve its impartiality between those
various interests, ultimately have to leave that balancing exercise
to the court.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.